Excerpt: - - 7. in the letters patent appeal as well as in the civil revision application the question which has arisen for our consideration is as follows:s.h. sheth, j.1. this letters patent appeal is directed against the judgment and order recorded by the learned single judge in first appeal no. 200 of 1972.2. the facts of the case, briefly stated, are as under:in civil suit no. 54 of 1910 filed under section 92 of the code of civil procedure a scheme was settled for the administration of the public trust in question. sunni muslim wakf committee, was constituted under it and consisted of five members (hereinafter referred to as 'the trustees'). the original applicant filed civil miscellaneous application no. 244 of 1970 in the city civil court at ahmedabad in which he prayed that original opponents nos. 1 and 2 be removed by the court as trustees because they did not administer the trust and discharge their duties properly as they.....

Judgment:

S.H. Sheth, J.

1. This Letters Patent Appeal is directed against the judgment and order recorded by the learned single Judge in First Appeal No. 200 of 1972.

2. The facts of the case, briefly stated, are as under:

In Civil Suit No. 54 of 1910 filed under Section 92 of the Code of Civil Procedure a scheme was settled for the administration of the public trust in question. Sunni Muslim Wakf Committee, was constituted under it and consisted of five members (hereinafter referred to as 'the trustees'). The original applicant filed Civil Miscellaneous Application No. 244 of 1970 in the City Civil Court at Ahmedabad in which he prayed that original opponents Nos. 1 and 2 be removed by the Court as trustees because they did not administer the trust and discharge their duties properly as they suffered from physical and mental incapacity. The original application was filed in the Trial Court without obtaining the consent of the Charity Commissioner in writing as required by Section 50 of the Bombay Public Trusts Act because, according to the original applicant he had a right to do so under Clauses 2 and 3 of the Scheme of the trust in question which provided for appointment and removal of the trustees,

3. The original opponents Nos. 1 and 2 inter alia contended in defence that the original application was not maintainable because Section 50 of the Bombay Public Trusts Act, 1950 superseded Clauses 2 and 3 of the Scheme in question and that the only remedy which the original applicant had was to institute a suit after complying with the provisions of Section 50 of the Bombay Public Trusts Act, 1950.

4. The learned Trial Judge raised the necessary issues and tried issues Nos. 4, 5, 6, 7 and 7-A as preliminary issues, He upheld the preliminary defe nee contention and dismissed the said application. The original applicant challenged that order in First Appeal No. 200 of 1972 which he filed in this Court. The learned Single Judge by this judgment and order dated 23rd/26th March 1973 allowed the appeal, set aside the order made by the learned Trial Judge and remanded the original application to the Trial Court for decision on merits. He held that the original application filed by the original applicant under Clauses 2 and 3 of the scheme in question was maintainable inspite of the provisions of Section 50 of the Bombay Public Trusts Act, 1950.

5. It is that appellate order which is challenged by the original oppo nents in this Letters Patent Appeal.

6. Civil Revision Application No. 989 of 1975 also raises a similar question. In that case the original applicants made an application to the learned Assistant Judge at Surat for modification of the scheme settled before the Bombay Public Trusts Act, 1950 came into force. They relied upon a clauses in the scheme in question which conferred upon them the right to move the 'Court for modification of the scheme. They instituted the original application for the purpose stated above. A preliminary con tention was raised in that application. It was contended that no such application could be instituted in view of the provisions of Section 50 of the Bombay Public Trusts Act, 1950 and that the only remedy which the ori ginal applicants had was to institute a suit under Section 50 after having obtained the consent of the Charity Commissioner in writing. This contention was tried by the learned Extra Assistant Judge at Surat. After having exhaustively dealt with the arguments raised by the parties he rejected that contention and ordered the original application to proceed further because in his view inspite of the provisions of Section 50 of the Bombay Public Trusts Act, 1950 it was maintainable. That order is challenged by the original opponent in this Civil Revision Application.

7. In the Letters Patent Appeal as well as in the Civil Revision Application the question which has arisen for our consideration is as follows:

Whether an application either for removal of trustees or for modification of the scheme filed under the relevant clause in the scheme settled in a suit filed under Section 92 of the Code of Civil Procedure before the Bombay Public Trusts Act, 1950 came into force is maintainable in view of the provisions of Section 50 of the Bombay Public Trusts Act, 1950.

In other words, the contention which has been raised is whether Section 50 overrides the relevant clause in such a scheme.

8. In order to examine the contention which has been raised before us, it is necessary to turn to Section 92 of the Code of Civil Procedure under which the schemes were settled. It provides as follows:

In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General, may institute a suit, whether contentions or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree--

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee

(cc) directing a trustee who has been removed or a person who has ceased to-be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorizing the whole or any part of the trust property to be let, sold mortgaged or exchanged;

(g) setting a scheme; or

(h) granting such further or other relief as the nature of the case may require.

This is what Sub-section (1) of Section 92 provides. Sub-section (2) thereof malices a special provision in relation to the Religious Endowments Act, 1863, It is not necessary to reduce it here Section 93 provides that the powers conferred upon the Advocate General, inter alia, by Section 92 may, outside the presidency towns, be, with the previous sanction of the State Government, exercised also by the Collector or by such officer as the State Government may appoint in that behalf. The schemes in question were settled in suits instituted under Section 92 of the Code of Civil Procedure prior to 1950. They inter alia provided that a person having an interest in that trust may make an application to the District Court for removal of a trustee or for modification of the scheme.

9. Now, Section 50 of the Bombay Public Trusts Act, 1950 which is a special legislation provides that 'in any case (i) where it is alleged that there is a breach of public trust, (ii) where a direction is required to recover possession of a property belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from any person including a person holding adversely to the public trust, or (ii) where the direction of the Court is deemed necessary for the administration of any public trust,' either 'the Charity Commissioner after making such enquiry as he thinks necessary or two or more persons having an interest in the trust and having obtained the consent in writing of the Charity Commissioner as provided in Section 51 may institute a suit whether contentious or not in the Court within the local limits of whose jurisdiction the whole or part of the subject matter of the trust is situate, to obtain a decree' for any of the reliefs specified in Clauses (a) to (h) thereof. Clause (b) specifies 'the removal of any trustee or manager.' Clause (g) specifies 'the settlement of a scheme or variations or alterations in a scheme already settled.' The first proviso to Section 50 is very significant. It is as follows:

Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust except in conformity with the provisions thereof.

Section 50A which was inserted by Bombay Act 6 of 1960 confers upon the Charity Commissioner power to frame, amalgamate or modify schemes. Section 51 provides that 'if the persons having an interest in any public trust intend to file a suit of the nature specified in Section 50, they shall apply to the Charity Commissioner in writing for his consent. The Charity Commissioner, after hearing the parties and after making such inquiry as he thinks fit, may within a period of six month from the date on which the application is made, grant or refuse his consent to the institution of such suit.' It further provides that ;'the order of the Charity Commissioner refusing his consent shall be in writing and shall state the reasons for the refusal.' Sub-section (2) of Section 51 provides that if the Charity Commissioner refuses his consent to the institution of the suit under Sub-section (1) the persons applying for such consent may file an appeal to the Gujarat Revenue Tribunal constituted under the Bombay Revenue Tribunal Act, 1939. Sub-section (3) of Section 51 provides that 'in every suit filed by persons having interest in any trust under Section 50, the Charity Commissioner shall be a necessary party.' Sub-section (4) of Section 51 makes the decision of the Charity Commissioner, subject to the decision of the Gujarat Revenue Tribunal in appeal, final and conclusive.

10. The scheme of Section 92 of the Code of Civil Procedure under which the schemes in question were settled appears to us to be different from the scheme of Section 50 of the Bombay Public Trusts Act, 1950 which covers, for the purpose of these cases the same area which Section 92 of the Code of Civil Procedure covers. However, it provides for something more. Section 50 requires the consent of the Charity Commissioner in writing for the institution of a suit, inter alia, either for removal of a trustee or for modification or variation or alteration of a scheme already settled. No such consent of the Advocate General is required under Section 92 or of the Collector under Section 93 of the Code of Civil Procedure. Secondly, whereas the provisions of Section 50 of the Bombay Public Trusts Act, 1950 apply to suits instituted for variations or alterations in a scheme already settled, the provisions of Sections 92 and 93 of the Code of Civil Procedure do not apply to such cases. The question, therefore, which has arisen for our consideration is whether in disregard of the provisions of Section 50 the material ingredient of which is the obtaining of the consent in writing of the Charity' Commissioner for the institution of a suit, an application can be made or proceedings can be instituted in cases of schemes settled before the Bombay Public Trusts Act, 1950 came into force. Under the relevant clauses of the schemes in question either for removal of a trustee or for modification of the scheme in the matter of administration of a public trust. Mr. Shah has contended before us that Section 50 of the Bombay Public Trusts Act, 1950 does not override the relevant clauses of the schemes in question. That is the view which has found favour with the learned single Judge against whose judgment this Letters Patent Appeal has been filed. The argument advanced by Mr. Shah is not a sound argument and we are unable to uphold it. The schemes settled in suits under Section 92 of the Code of Civil Procedure derive their force and authority from Section 92. The first test which we apply in order to examine the soundness of the contention raised by Mr. Shah is this:

Can a suit now be filed under Section 92 of the Code of Civil Procedure for removal of a trustee?

In view of the provisions of Section 50 which is a special legislation on the subject we are of the opinion that to the extent to which Section 50 is repugnant to or in conflict with Section 92 of the Code of Civil Procedure it must override the general provisions contained in Section 92 of the Code of Civil Procedure. If Section 50 has the capacity, as up hold, to override the provisions of Section 92 of the Code of Civil Procedure, it must necessarily have the capacity to override the relevant clause in any scheme settled in a suit filed under Section 92, C.P.C. A scheme settled in a suit filed under Section 92, C.P.C. is not independent of that section nor can it be placed above it. The rights or remedies which have been conferred upon the parties by a scheme settled in a suit under Section 92, C.P.C. can only survive in their fullest form if Section 92 survives. If it does not survive, they have got to be adjusted and reshaped in light of the provisions of Section 50 of the Bombay Public Trusts Act, 1950.

11. Section 52 of the Bombay Public Trusts Act, 1950 goes a step further and enables us to take this view with greater force, Sub-section (1) of Section 52 provides as follows:

Notwithetanding anything contained in the Code of Civil Procedure, 1908, the provisions of Sections 92 and 93 of the said Code shall not apply to the public trusts.

It is, therefore, clear that so far as the public trusts to which the Bombay Public Trusts; Act, 1950 applies are concerned, Section 92 and the rights and remedies provided thereunder have been repealed. Therefore, no resort by anyone can be had to Section 92 in order to invoke his remedy thereunder. Therefore, it is not 'merely by virtue of the fact that there is a special legislation in the shape of Section 50 which overrides the general legislation in the shape of Section 92 of the Code of Civil Procedure but also on account of the provision of Sub-section (1) of Section 52 which in terms repeals or renders inoperative Section 92 of the Code of Civil Procedure in relation to the public trusts that we say that the remedy provided under Section 92 of the Code of Civil Procedure cannot be resorted to in respect of matters concerning public trusts governed by the provisions of the Bombay Public Trusts Act, 1950. If the remedy of filing a suit under Section 92 of the Code of Civil Procedure has been repealed in relation to public trusts by virtue of Sub-section (1) of Section 52 it is clear that any remedy provided by any clause in a scheme settled in a suit filed under Section 92 of the Code of Civil Procedure must also give way to the provisions of Section 50 of the Bombay Public Trusts Act, 1950. If the remedy provided under Section 92 does not survive by virtue of the provisions of Sections 50 and 52 of the Bombay Public Trusts Act, 1950, the relevant clause of a scheme which provides a remedy either for the removal of a trustee or for the modification of a scheme or for any other purpose concerning a public trust and falling under the provisions of the Bombay Public Trusts Act, 1950 cannot be given the super legislative status so as to override the provisions of Sections 50 and 52 of 'the Bombay Public Trusts Act, 1950.

12. In our opinion, this is the intention of the legislature. It is made clear by Sub-section (2) and Sub-section (3) of Section 52, Sub-section (2) provides that in all pending proceedings to which the Advocate General or the Collector exercising the powers of the Advocate General is a party, 'the Charity Commissioner shall be deemed to be substituted in those proceedings either for the Advocate General or the Collector, as the case may be.' Sub-section (2) provides that 'any reference to the Advocate General made in any instrument, scheme, order or decree of any Civil Court of competent jurisdiction made or passed, whether before or after the said date, shall be construed as a reference to the Charity Commissioner.' The scheme relating to the repeal of Section 32 or rendering it inapplicable in respect of public trusts governed by the Bombay Public Trusts Act, 1950 is, therefore, complete It is clear, therefore, that not only Sections 92 and 93 of the Code of Civil Procedure have been removed from the field of public trusts but all the vestiges of those sections which may remain after they have been rendered inoperative have also been removed by Sub-section (2) and Sub-section (3) of Section 52 of the Bombay Public Trusts Act, 1950.

13. We now turn to Section 7 of the Bombay General Clauses Act. 1904 which provides for the effect of repeal. We are referring to this section because, in our opinion, the provisions of Section 92 of the Code of Civil Procedure in relation to public trusts have been repealed by virtue of the provisions of Section 52(1) read with Section 50 of the Bombay Public Trusts Act, 1950. Section 7 of the General Clauses Act, 1904, inter alia provides that where any Bombay or Gujarat Act has been repealed after the commencement of the Bombay General Clauses Act, 1904, the repeal shall not affect, inter alia, any right under any enactment so repealed, that it shall not affect any remedy in respect of any such right and that any such remedy which a person had under the repealed statute can be availed of by him unless a different intention appears in the repealing statute. We now turn to Section 80 of the Bombay Public Trusts Act, 1950 which, in our opinion, expresses a different intention and, therefore, the remedy which was conferred upon the original applicants by the relevant clauses in the schemes in question does not survive. Section 80, inter alia, provides as follows:

Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, or in respect of which the decision or order of such officer or authority has been made final and conclusive.

This section bars the jurisdiction of the Civil Court to decide or deal with any question which is required to be decided or dealt with by or under the Bombay Public Trusts Act, 1950 by any officer or authority under it. Section 50 read with Section 61 in terms lays down that so far as the removal of a trustee or the variation or modification of a scheme already settled is concerned, it has got to be dealt with first by the Charity Commissioner in appropriate proceedings instituted before him and that the Charity Commissioner is required to come to the conclusion whether a suit should be allowed to be instituted for any of the purposes specified in Section 50 of the Bombay Public Trusts Act, 1950. It is only when he clears the ground and accords his consent to the institution of the suit that the suit can be instituted for any of the reliefs specified in Section 50 of the Bombay Public-Trusts Act, 1950. If he refuses to accord his consent, subject to the decision in appeal by the Gujarat Revenue Tribunal, no suit can ever be instituted. Therefore, the Jurisdiction of the Civil Court and its competence to entertain a suit which contains a prayer for any of the reliefs specified in Section 50 of the Bombay Public Trusts Act, 1950 are conditioned to and dependent upon the consent of the Charity Commissioner subject indeed to the decision of the Gujarat Revenue Tribunal in appeal against his order if he has refused the consent. Sub-section (4) of Section 51 makes his decision final and conclusive. It is, therefore, clear that the remedy which the original applicants had under the relevant clauses in the schemes in question has now been controlled and regulated by the provisions of Sections 50, 52 and 80 of the Bombay Public Trusts Act, 1950. The conjoint reading of these three sections makes it clear beyond any doubt that the legislature in the matter of filing of such a suit by persons interested in a public trust has expressed a different intention and, therefore, the provisions of the said sections override the relevant clauses in the schemes in question.

14. The view which we are taking is supported by the decision of a Division Bench of this Court in Ladhabhai Jesabhai Patel and Ors. v. Kaka Savji Ramji, Chairman of the Committee of Imamsha Bava Roza Trust and Ors.s I.L.R. (1973) 14 Gujarat 125. A similar question arose in that case. It has been observed in that case that a suit claiming relief of settlement of a scheme of variation or alteration in a scheme already settled can, in respect of a public trust, be filed by the Charity Commissioner or two or more persons having interest in the trust with the consent in writing of the Charity Commissioner. It has been further held in that decision that in view of the provisions of Section 50 of the Bombay Public Trusts Act, 1950 no application by persons having interest in the trust can be filed in the Court for a variation or alteration in a scheme already settled. The decision of the Supreme Court in Raje Anandrao v. Shamrao and Ors. : [1961]3SCR930 upon which Mr. Shah has placed reliance has been considered by this Court in that decision. It has been further observed in that decision that in a suit brought under Section 92 if a scheme has been settled; there is nothing in Section 92 which would render it illegal for the Court to provide a clause in the scheme itself for its future modification. However, it has been further observed in that decision that there is difference between the provisions of Section 50 of the Bombay Public Trusts Act, 1950 and Section 92 of the Civil Procedure Code. In that context it has been observed by this Court in that decision that permission to institute a suit not only for settling a scheme but also for variations or alterations in a scheme already settled is necessary under Section 50 of the Bombay Public Trusts Act, 1950, whereas under Section 92 of the Civil Procedure Code, permission is necessary only for a suit for settling a scheme and that no such permission is necessary for instituting a suit for altering or varying a scheme already settled. Secondly, whereas Section 50 of the Bombay Public Trusts Act enables the Charity Commissioner to institute a suit for variations or alterations in a scheme already settled, Section 92 of the Code of Civil Procedure does not enable the Advocate General to file a suit for varying or altering a scheme already settled. The difference which has been pointed out by this Court in that decision between Section 50 and Section 93 is quite real and sound. Relying upon the decision of the Supreme Court in Raje Anandrao's case (supra) it has been further observed that a suit for settlement of a scheme is analogous to an administration suit and so long as the modification sought in the scheme is for the purpose of the administration, it can be made by an application under the relevant clause of the scheme without filing a suit under Section 92 of the Code of Civil Procedure. Such modifications which can be made by an application filed under the relevant clause for the purpose of administration of the trust did not, in the opinion of the Court, at feet the private rights of other interested persons such as Pujaris. The reliance placed by Mr. M.C. Shah on the decision of the Supreme Court in Raje Anandrao's case (supra) is thoroughly misconceived because the Supreme Court in that case had been dealing only with Section 92 of the Code of Civil Procedure and was not called upon to consider the effect of Section 51 read with Sections 52 and 80 of the Bombay Public Trusts Act, 1959 either upon Section 92 of the Code of Civil Procedure or on a scheme settled in a suit filed under that section. We are, therefore, unable to make any use of the aforesaid decision for the purpose of (his case.

15. Mr. Shah has however raised certain arguments in order to support the decision rendered by the learned single Judge. The first proposition which he has advanced is that whereas Section 50 of the Bombay Public Trusts Act, 1950 contemplates a suit, the relevant clause in the scheme in question contemplates an application and that there is a real distinction between the two We do not think there is any distinction between the two. Whether a person interested files a under Section 50 with the consent of the Charity Commissioner in writing or whether he files an application under the relevant clause in a scheme in question what he avails himself of is the remedy for seeking relief in relation to the administration of a trust including the removal and appointment of a trustee or the variation of a scheme. In our opinion there is no real distinction between the two whether it is a suit or an application. The unreal distinction which Mr. M.C. Shah has tried to make out has got to be tested on the anvil of the availability of a remedy to a person interested in a public trust to vindicate the grievance which he makes against it or its administration. Mr. Shah has asked us to test the view which we are taking by examining the proposition whether liberty can be reserved in a scheme settled under Section 50 of the Bombay Public Trusts Act for making an application either for removal of a trustee or for modification or aversion or alteration of a sohemj already settled. The question which he has raised is hypothetical in character. We are not concerned with that situation in the instant case and we are not inclined to examine this abstract and wide proposition. To examine it and to express any opinion will, in our opinion, be obiter dicta.

16. The next argument which he has advanced is that notwithstanding the provisions of Sections 50, 52 and 80, the decretal right given to the original applicants by the schemes in question survives. We do not think so. If an express legislative enactment can be repealed or overridden by another express legislative enactment, a clause in a scheme settled in a suit filed under Section 92 of the Code of Civil Procedure can also be overridden by an express legislative provision or by necessary implication flowing therefrom. Section 52 in terms repeals or renders inoperative Section 92 C.P.C. in respect of public trust governed by the Bombay Public Trusts Act, 1950. If the remedy provided by Section 92 has, therefore, been expressly repealed by Section 52 and does not survive, even in cases of schemes settled before the Bombay Public Trusts Act, 1950 came into force by virtue of the provisions of Section 80 of the Bombay Public Trusts Act, 1950, any remedy reserved in a clause in a scheme settled in a suit under thatsection must also be held to have been overridden or superseded by Section 52 read with Section 50 and 80 of the Bombay Trusts Act. The argument which Mr. Shah has raised is, therefore, absolutely unsound.

17. We may observe that what Section 50 has done is to provide to the persons interested in a public trust the same remedy which the scheme in question provided to him except to the extent that the person who seeks relief in respect of a public trust shall have to route his litigation through the Charity Commissioner instead of instituting it directly in a Civil Court. That, in our opinion, does not destroy his remedy. All that is sought to be introduced by the legislature is to route the litigation relating to public charities through the Charity Commissioner who is the custodian of all public charities and to streamline it. The introduction of this check makes a wholesome and salutary provision of saving the funds of charity from being squandered away in fruitless litigations. In case of every genuine litigation there will be no difficulty whatsoever in vindicating the grievance which the person interested in a public trust make because in every such case the Charity Commissioner will certainly give his consent to institute a suit. If he erroneously or wrongly refuses to give his consent, there is always an appellate remedy available to the aggrieved person. He can appeal to the Gujarat Revenue Tribunal against the order of the Charity Commissioner refusing his consent to him to institute the suit. To uphold the argument raised by Mr. Shah is to defeat the object and purpose of the Bombay Public Trusts Act, 1950. It we uphold that argument, it will mean that in cases of all public trusts in which schemes were settled before the Bombay Public Trusts Act, 1950 came into force, the Charity Commissioner will have no control over the litigation whatsoever. The result will, therefore, be that all such public trusts will be placed beyond the control of the Charity Commissioner in so far as litigation relating to them is concerned. The second unwholesome result which it will produce is to destory in relation to them the effect of Sub-section (4) of Section 51 which imparts to the decision of the Charity Commissioner recorded under Sub-section (1) of Section 51 the character of finality and conclusivencess. We cannot construe a statute or take a view which defeats its provisions in relation to a part of the subject matter with it deals. We are, therefore, unable to hold that the right which was conferred by the schemes in question on the persons interested in the public trusts under the relevant clauses in the scheme settled in suits instituted under Section 92 of the Code of Civil Procedure remains absolutelyunaffected by the provisions of Section 50 read with Section 52 and 80 of the Bombay Public Trusts Act, 1950. In our opinion, therefore, the learned single Judge was with respect in error in taking the view that the original proceedings out of which the Letters Patent Appeal has arisen were maintainable and could be tried on merits. Similarly also the learned Extra Assistant Judge was in error in holding that the original proceeding out of which the Civil Revision Application arises were, in absence of the consent of the Charity Commissioner, maintainable.

We, therefore, allow the Letters Patent Appeal, set aside the order made by the learned single Judge and restore the order made by the learned Trial Judge.

18. So far as the Civil Revision Application is concerned, we set aside the order made by the learned Extra Assistant Judge and dismiss the original application filed for modification or variation of the scheme because it is, in our opinion, not maintainable in absence of the consent in writing of the Charity Commissioner. Rule is made absolute.

19. In both the cases there shall be no order as to costs except the costs of 'the Chairty Commissioner which in both the cases shall come out of the estate.